I-485 Denied but I-130 Is Approved

[DKoc]

Hi Everyone,

Thank you for reading my questions in advance. I am a permanent resident in the U.S. and I petitioned for my wife by filing I-130 while she was a graduate student and legally present in the U.S. . While I-130 was still pending we filed for I-485 based on our priority date and the fact that she was working in the U.S. with her OPT. Recently we had the interview and found that our I-130 was approved while I-485 was denied with the argument that at the time of our application I-130 was not yet approved. We also received a notification that her EAD card that was given for the I-485 application will be revoked unless we can provide proof that her I-485 is still pending. However, nowhere in the USCIS website it is mentioned that you need the I-130 approved for being able to apply for I-485 change of status. I am also 100% certain we filled out and filed her adjustment of status after her priority date became eligible. Therefore we believe (and my attorney as well) that USCIS erroneously denied her I-485 application. My questions are:

- In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?

-Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?

-What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?

-Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

Thank you again!

[care_candidate]

14 hours ago, DKoc said:

Hi Everyone,

Thank you for reading my questions in advance. I am a permanent resident in the U.S. and I petitioned for my wife by filing I-130 while she was a graduate student and legally present in the U.S. . While I-130 was still pending we filed for I-485 based on our priority date and the fact that she was working in the U.S. with her OPT. Recently we had the interview and found that our I-130 was approved while I-485 was denied with the argument that at the time of our application I-130 was not yet approved. We also received a notification that her EAD card that was given for the I-485 application will be revoked unless we can provide proof that her I-485 is still pending. However, nowhere in the USCIS website it is mentioned that you need the I-130 approved for being able to apply for I-485 change of status. I am also 100% certain we filled out and filed her adjustment of status after her priority date became eligible. Therefore we believe (and my attorney as well) that USCIS erroneously denied her I-485 application. My questions are:

- In this case would applying for a motion to reconsider make her I-485 still pending or would she lose that EAD card no matter what?

-Since her OPT is ending within a month we are worried that she will be out of status until a new EAD card is sent if we file for a new I-485. What would be the best strategy so that she can still remain and work in the U.S. without breaking any laws?

-What would happen if we file a new I-485 and she continues to work in the U.S. considering that they made an error while denying I-485?

-Lastly where in USCIS website does it say that you need to have I-130 approved for applying to I-485? (I just want to make sure that we have not done a mistake in this matter)

Thank you again!

You are correct on this one. Read following from I-485 Instructions on page 20

"Family-based preference categories include: unmarried sons and daughters (21 years of age and older) of U.S. citizens; spouses, unmarried children (under 21 years of age) and unmarried sons and daughters (21 years of age and older) of lawful permanent residents; married sons and daughters of U.S. citizens; and brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age or older). If a visa is immediately available, applicants filing under a family-based preference immigrant category do not have to wait until Form I-130 is approved to file Form I-485. If a visa is immediately available, you may file your Form I-485 together with your Form I-130, while Form I-130 is pending, or after your Form I-130 is approved. Otherwise, you may file your Form I-485 only after your Form I-130 is approved and a visa is immediately available. See the When Should I File Form I-485 section for more information."